an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
"The Workers are Animals. Let's Replace Them with Robots."
Among the billionaires at the vanguard of global capital, Terry Gou of Hon Hai (also known as Foxconn) deserves special recognition for his honesty. "Hon Hai has a workforce of over one million worldwide and as human beings are also animals, to manage one million animals gives me a headache," said the chairman. His company has also begun building "an empire of robots" to replace a whining workforce.
To get a better sense of why the "animals" may be complaining, be sure to listen to Mike Daisey's extraordinary report on his trip to Shenzhen, home of a massive Foxconn factory. Here's one excerpt:
N-hexane is an iPhone screen cleaner. It's great because it evaporates a little bit faster than alcohol does, which means you can run the production line even faster and try to keep up with the quotas. The problem is that n-hexane is a potent neurotoxin, and all these people have been exposed. Their hands shake uncontrollably. Most of them can't even pick up a glass.
I talk to people whose joints in their hands have disintegrated from working on the line, doing the same motion hundreds and hundreds of thousands of times. It's like carpal tunnel on a scale we can scarcely imagine. And you need to know that this is eminently avoidable. If these people were rotated monthly on their jobs, this would not happen.
But that would require someone to care. That would require someone at Foxconn and the other suppliers to care. That would require someone at Apple and Dell and the other customers to care. Currently no one in the ecosystem cares enough to even enforce that. And so when you start working at 15 or 16, by the time you are 26, 27, your hands are ruined. And when they are truly ruined, once they will not do anything further, you know what we do with a defective part in a machine that makes machine. We throw it away.
When workers are already treated as machines, perhaps their replacement by robots should be a cause for celebration. But the question then becomes: what do the displaced do for a living? Is there an alternative to exploitation? Writers in the more rarefied precincts of technology studies tend to praise the fading boundaries between man, machine, and beast. However, it's by no means a foregone conclusion that animals' interests will be vindicated by the legal order, or robots treated with the simulacrum of respect that their simulacrum of humanity merits. To the extent the bulk of humanity is being recognized as "dependent rational animals," those in authority tend to agree with Gou's approach more than Alasdair MacIntyre's.
Expect more speed-up in the developed world, as thought leaders decree that Americans must become "ten times more productive" if they dare demand wages ten times higher than those prevailing among the bullied and battered workers at the bottom of the supply chain. That's our future, unless we can continue to rally around a sense of social minimums due to each person qua person. That motivates my interest in positive rights, and the fantastic discussion that followed this post on the topic. Richard Posner once said that "Most of us would think it downright offensive to give greater rights to . . . computers than to retarded people, upon a showing that . . . [they have] a greater cognitive capacity than a profoundly retarded human being.” Similarly, global priorities are troublingly scrambled if the construction of a "robot empire" is more pressing than the establishment of humane and secure living conditions for those whose work created the wealth that makes the "empire" possible.
Sharing the Gains from Automation
Of course, we all know the Davos elite's response to such dark premonitions: get educated and hustle. The bard of flatworld, Tom Friedman, helpfully applauds "race to the bottom" online auctions for talent as one more "opportunity." He ignores the vast literature on these systems' potential to eviscerate the last vestiges of legal protections for employees. Friedman's too busy jet-setting to worry about anyone's slavery footprint. Thinking about how to get health care or housing to the newly "liberated" global workforce is beneath him.
While Friedman's Panglossian outlook is au courant, this plain talk from FDR appears ever more a relic of the 20th century:
To those who say that our expenditures for Public Works and other means for recovery are a waste that we cannot afford, I answer that no country, however rich, can afford the waste of its human resources. Demoralization caused by vast unemployment is our greatest extravagance. Morally, it is the greatest menace to our social order. Some people try to tell me that we must make up our minds that for the future we shall permanently have millions of unemployed just as other countries have had them for over a decade.
What may be necessary for those countries is not my responsibility to determine. But as for this country, I stand or fall by my refusal to accept as a necessary condition of our future a permanent army of unemployed. On the contrary, we must make it a national principle that we will not tolerate a large army of unemployed and that we will arrange our national economy to end our present unemployment as soon as we can and then to take wise measures against its return. I do not want to think that it is the destiny of any American to remain permanently on relief rolls.
We can count on Friedman and other sophisticates to claim that times have changed. Globalization and automation have made many US jobs obsolete, they say. FDR may have had an answer to the first Great Depression, but not the second.
Is the answer really to put everyone on a hamster wheel of digital labor auctions and scrambles for gigs? I don't think that's correct. The question for a future economics (and morals) is how to set a baseline "social minimum" for workers in an utterly precarious and unpredictable work environment.
We have the resources to do this. There have been enormous gains in productivity over the past few decades. But the gains are going disproportionately to those at the very top. In the last economic expansion, the top 1 percent of U.S. households captured two-thirds of income gains. Yes, that's 67% going to the top 1%. During the expansion, "the inflation-adjusted income of the top 1 percent of households grew more than ten times faster than the income of the bottom 90 percent of households." The thought that the gains from automation will be shared equally among social classes is about as quaint as this personal robot envisioned in 1961.
Now I'm sure that, among that top 1%, there were some incredibly hard-working geniuses. Maybe some produced productivity gains that were actually worth 200 times more than what the average member of the bottom 99% contributed.* But power drives economic outcomes at least as often as productivity. Being able to slash all your workers' pay (or work them to exhaustion in an 110-degree warehouse) simply because there is high unemployment is not exactly a valuable skill. Any fool could improve the bottom line at "a highly profitable company" by "demanding large-scale concessions" from its employees.
In modern times, far more than other unions, the longshoreman have used technological change to their advantage. In 1960, the West Coast longshoremen agreed to far-reaching automation that replaced inefficient break-bulk cargo, which relied on hooks to move the cargo, with containerized cargo, which relies on cranes. In accepting automation, the union recognized that productivity would soar and the number of longshoremen needed would plunge; there are now 10,500 West Coast longshoremen, down from 100,000 in the 1950′s.
In exchange, the union received an unusual promise: port operators pledged to share the fruits of the new automation. Management promised all longshoremen a guaranteed level of pay, even if there was not work for everyone. Management also promised to share the wealth.
Basically, I think this is the deal we need to strike throughout the economy: automation (and relatedly, free trade) in exchange for compensating the displaced. However, the longshoremen were only able to achieve this victory because they occupy an unusual strategic choke-point in the economy. Shutting down the ports can cripple wide swaths of business, and this gives dockworkers a kind of negotiating leverage that isn’t available to, say, supermarket checkers. Which is why I think that the demand to compensate workers for technological change now has to be fought out politically and electorally, at the level of the state, rather than in the individual workplace. That’s the essence of my argument for the Basic Income: just like the dockworkers’ agreement, it ensures a level of pay whether or not there is work for everyone, only it generalizes the principle to encompass the whole economy.
You can dismiss that as utopianism if you like. Certainly the call for work reduction and the decoupling of income from employment has been made many times through the generations, from Paul LaFargue to André Gorz to Stanley Aronowitz. But the left does itself no favors by remaining in a defensive crouch, clinging to nostalgia for a political order that was rooted in a very different political economy–and which wasn’t even all that great to begin with. . . . The modern right provided an offensive strategy and a grand vision of what was wrong with the society that existed and what had to be done to turn it into something better: one market under god.
Pace economists like Goldin & Katz, we can't guarantee livelihoods by promoting employment by educating everyone more. When robots are in line to replace some of the most highly educated people in society, that's a recipe for disappointment. The real question is how to divide the spoils from societal advancement and automation fairly. Alperovitz and Daly have demonstrated that "up to 90 percent (and perhaps more) of current economic output derives not from individual ingenuity, effort, or investment but from our collective inheritance of scientific and technological knowledge: an inheritance we all receive as a “free lunch."" The real motivation for calling workers "animals" or "machines" is to deny them their share in the the "universal destination of goods," which "remains primordial, even if the promotion of the common good requires respect for the right to private property and its exercise."
*My back of the envelope calculation: If there were 100 units of gain in this time period to be distributed to 100 people, that means that the top person would get 67 units. The 99 persons remaining would share the remaining 33. That average would be one third of a unit for each of the 99. That's 200 times less than 67.